State v. Davis, 80,936.

Decision Date10 March 2000
Docket NumberNo. 80,936.,80,936.
PartiesSTATE OF KANSAS, Appellee, v. SHAKEER DAVIS, Appellant.
CourtKansas Supreme Court

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Brenda M. Jordan, assistant county attorney, argued the cause, and William E. Kennedy III, county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Shakeer Davis appeals his convictions for first-degree felony murder, attempted first-degree murder, aggravated robbery, and aggravated burglary in a shooting in Manhattan. The issues raised in this appeal concern: (1) a juvenile's participation in a court-ordered psychological evaluation in connection with a motion and hearing under K.S.A. 38-1636 to determine whether the juvenile is to be tried as an adult, (2) the determination of the voluntariness of a juvenile's confession, (3) and (4) admissibility of statements made after an ambiguous request for counsel and after a previous Miranda warning, (5) the right to a unanimous verdict in an alternative means case, and (6) the propriety of an instruction on a lesser included offense. Upon review and for the reasons set forth below, we affirm.

On February 28, 1997, a shooting occurred which left Wanda Norman dead and John Garner wounded. The defendant, 17-year-old Shakeer Davis, was charged as a juvenile with first-degree premeditated murder, attempted first-degree murder, aggravated robbery, and aggravated burglary. The State filed a motion requesting that the trial court certify prosecution of the defendant as an adult.

At the certification hearing, Richard Coulter, the chief social worker at the Youth Center at Topeka (YCAT), testified regarding the defendant's suitability as an inmate. Coulter stated that the defendant could only be retained at YCAT until age 21 and that after that time he would be discharged regardless of rehabilitation. Coulter noted that the typical offenders at YCAT were in the 14to 16-year-old range.

After reviewing a court-ordered psychological assessment of the defendant and the defendant's offense record, Coulter stated that while YCAT could maintain the defendant, it would be difficult to be optimistic about the prospects for the defendant to show a substantial positive change. Coulter stated that YCAT's programming is designed for adolescents and the defendant's psychological report stated that he had been functioning on his own for some time and viewed himself as an adult.

Dr. John Fajen, the psychologist who had performed the evaluation of the defendant, also testified. He stated that the purpose of the evaluation was to determine whether the defendant should be charged as a juvenile or an adult. His examination of the defendant totaled 5 to 6 hours with 1 ½ to 2 hours of time spent face to face with the defendant, and the remainder in testing. Dr. Fajen testified that the defendant was cooperative during the testing.

Dr. Fajen testified that the defendant stated he had a number of arrests and had committed numerous other crimes such as breaking and entering, car theft, high speed car chases, trespassing, theft, and shoplifting. The defendant was sent from New York to Kansas at age 15. The defendant reported that he had been smoking marijuana since age 16 and had been involved in outpatient and inpatient counseling, which he found not to be helpful. Further, the defendant reported several suicide attempts. Dr. Fajen noted that the defendant did complete his General Equivalency Diploma.

According to Dr. Fajen, the defendant, while fairly competent to conduct himself appropriately, has shown significant errors in judgment. Dr. Fajen characterized the defendant as introverted and had difficulty interacting with people. Dr. Fajen stated that the defendant used others to meet his own needs without concern for the impact on the lives of the others that he used, and that he did not show remorse or accept blame. Further, according to Dr. Fajen, the defendant lived as an adult, keeping his own apartment and paying his own bills, and thought of himself as an adult. Dr. Fajen concluded that the defendant's history and attitude indicated that he was not amenable to treatment.

The defense moved to strike both the testimony of Dr. Fajen and the part of Coulter's testimony that relied on Dr. Fajen's report. The defense argued that the defendant's statements to Dr. Fajen were inculpatory and that Dr. Fajen had not notified the defendant of his Miranda rights prior to the examination. The trial court determined that it would not consider any inculpatory statements made with regard to the night of the incident but otherwise denied the motion. The court then addressed the required factors under K.S.A. 38-1636(e) and determined that the defendant should be tried as an adult. The defendant was eventually tried on an amended information charging him with alternative counts of first-degree premeditated murder and felony murder, as well as attempted first-degree murder, two counts of aggravated robbery, and one count of aggravated burglary.

Prior to trial, the defense filed a motion to suppress statements made by the defendant to police officers. At the hearing on the motion, the State presented the testimony of Howard Haile, a detective with the Riley County Police Department. Haile testified that prior to the defendant's questioning, the defendant was advised of his Miranda rights. Investigator Ryan Runyan of the Riley County Police Department stated that during the initial questioning, the defendant became unruly and stated that "maybe he needed an attorney." Runyan testified that at that point he and the other officers present left to allow the defendant to cool off.

Runyan testified that later he was walking back down the hallway after talking to another suspect when the defendant stuck his head out of the doorway and motioned to him. The defendant told Runyan that he needed a friend and wanted to tell the truth. Runyan sat down with the defendant and told him that if the defendant felt like he needed an attorney to let him know. The defendant told him that he had to tell the story. At the close of the hearing, the trial court denied the motion to suppress.

At trial, the State presented the testimony of Corey Bloom, a friend of victims Wanda Norman and John Garner. Bloom acknowledged that he, at the time of trial, was incarcerated for possession of cocaine. Bloom stated he had been introduced to the defendant at Garner's house and that he met with the defendant on February 23 and had loaned him $100 to get a friend out of jail. Bloom had taken the defendant's necklace as collateral for the loan. He told the defendant that when he paid back the money, he could pick up the necklace at Garner's house.

Bloom testified that he met with the defendant a few days prior to the murder, but the defendant did not have the money to redeem the necklace. On the day of the murder, Bloom called the defendant and demanded the money. According to Bloom, the defendant asked him not to sell the necklace and they argued. During the argument, the defendant told Bloom the defendant had a "9 millimeter with his name on it" and Bloom called the defendant a "punk nigger."

Christine Rhodeman, a girlfriend of the defendant's roommate, Duereal Campbell, testified as to the activities of the defendant and others on the day of the incident. She testified that she, the defendant, Campbell, and the defendant's sister, Delisha Branch, went to Salina in Branch's car in order to buy drugs. They went to a house in Salina where the group also obtained a gun. At some point, Branch asked the defendant about his necklace and the defendant told Branch that some "crackheads" had it. Branch then informed the group that they were going to get the necklace. The group stopped at Branch's house in Ogden where Branch obtained a small red baseball bat. The group then went back to Campbell and defendant's apartment.

Rhodeman testified that at the apartment, Campbell cleaned the gun and Branch began to sharpen the tips of some of the bullets with a razor scraper. The defendant then dipped the bullets in alcohol. He told Rhodeman he was cleaning the fingerprints off of them. At this point, Rhodeman decided she did not want to be involved in what might occur later and had the group drop her off at a friend's house.

Campbell, 17 years of age, then testified. He confirmed Rhodeman's story about going to Salina, purchasing drugs, and obtaining a pistol. Campbell stated that he talked of going to Garner's house and giving him the money to redeem the necklace. However, according to Campbell, Branch insisted that the defendant fight Garner and take the necklace back.

Campbell also testified that when the group returned to the apartment, Branch used a paint scraper to sharpen the points of some bullets. Campbell stated that the defendant borrowed a pair of rubber gloves from him in order to use bleach to clean the bullets.

Campbell testified that the group went to Garner's trailer where he kept watch while the defendant and Branch left to purchase gloves and surgical masks. The defendant and Branch then put on the gloves and masks and the defendant unscrewed the bulb to the yard light. Campbell testified that the defendant then knocked on the door. When Garner answered, the defendant hit him. Garner then slammed the door. Branch, who had the gun, fired at the door. The group then kicked the door open. Once inside, the defendant and Garner squared off and began fighting. During the fight, the defendant handed Campbell the bat. At this time, Branch was standing behind Wanda Norman holding a paint scraper to her throat. Branch had given Campbell the gun.

During the fight, the defendant knocked something over. At this point, Branch let go of...

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